Following MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department  EWCA Civ 1365 (12 June 2018), it has become increasingly clear that there are now two applicable tests in medical condition cases:
- the test in article 3 medical cases as expounded in N v Secretary of State for the Home Department  UKHL 31;  2 AC 296, i.e. that, where an individual suffers from a serious medical condition, it would breach article 3 to remove him from the UK only where he would face an early and undignified death
- the test in article 3 medical cases as per the criteria in Paposhvili v Belgium  Imm AR 867,ie the “Paposhvili test”. The Court in MM(Malawi) observed that the effect of Paposhvili upon existing jurisprudence was considered in AM (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 64, at paragraph 38: “So far as the [European Court of Human Rights] and the [ECHR] are concerned, the protection of article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where ‘substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’ (paragraph 183). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”
A previous blog post explores the Court of Appeal ‘s decision in AM (Zimbabwe): A very modest extension of the protection under Article 3 in medical cases: Court of Appeal rules upon meaning and effect of the guidance in Paposhvili
It is therefore possible to argue that a claimant satisfies the criteria in Paposhvili but not that in N.
The issues in MM(Malawi):
It was argued that MM met the Paposhvili criteria.
The Applicant, a national of Malawi had been diagnosed as HIV positive. Her HIV infection was satisfactorily controlled with a combination of two drugs, Kaletra liquid and Truvada dispersible tablets. The Applicant had to take these drugs in liquid form because, as a result of an oesophageal stricture, she was unable to swallow solids. The drug treatment was chronic.
Having remained in the UK without leave, MM submitted a leave to remain application based on human rights grounds, which was subsequently refused. MM appealed to the First Tier Tribunal. The appeal was allowed on article 3 medical condition grounds however the Secretary of State applied to the Upper Tribunal for permission to appeal. Permission having been granted, the upper Tribunal re-made the decision dismissing MM’s appeal. The Applicant applied to the Court of Appeal for permission to appeal.
The Court of Appeal’s considerations:
The Court had regard to the following:
- It was observed that although in in AM(Zimbabwe), the effect of Paposhvili was considered to represent a “very modest extension” of the article 3 protection in medical cases, it was nevertheless an extension.
- It was reiterated that in Paposhvili, the European Court emphasised that, once there are serious doubts about whether the individual if removed might suffer treatment that breached the article 3 threshold, the onus of proof falls upon the state, and the state has a procedural duty to conduct enquiries and/or obtain specific assurances to ensure that there is no risk of such treatment on return.
- The Court of Appeal observed that Upper Tribunal Judge in MM(Malawi) appeared to have equated the test in Paposhvili with that in N.
- The Court also noted that it was argued on the Applicant’s behalf that given the inconclusive nature of the evidence, the Upper Tribunal Judge erred in placing the burden of proof where he did when he concluded that: “It is still unclear what the position is regarding the availability of treatment in Malawi. The [First Applicant] has put forward evidence to suggest that liquid form treatment is not available but clearly some treatment is available. Given the paucity of evidence before the judge, it was in my view a material error of law for the judge to find as he did that to return the [First Applicant] to her country of origin would be to breach her rights under article 3. In my view no such breach of this country’s obligations will occur.”
- There was an issue between the parties as to whether there was sufficient evidence before the First-tier Tribunal to make a determination as to the availability of appropriate treatment in ingestible form in Malawi; and, if there was not, what should be done.
- The Applicant accepted that the test in N was not satisfied; but submitted that it was at least arguable that the test in Paposhvili was met, something which the Secretary of State accepted.
- It was argued that the burden was consequently on the Secretary of State to show that appropriate therapy was available; and, far from the evidence showing that, there was firm evidence before the tribunal that appropriate drugs in liquid form are not available in Malawi. On the evidence before the tribunal only one conclusion could properly be drawn, i.e. that ARV drugs ingestible by the Applicant are not available in Malawi.
- The Court of Appeal noted that on behalf of the Secretary of State, it was argued that although the Applicant did not meet the test in Paposhvili, the contrary was arguable. It was accepted that it was arguable that return might breach the procedural obligation described in Paposhvili, because the tribunal had inadequate evidence before it as to whether, if removed to Malawi, the Applicant would be able to access ARV drugs she would be able to take; and, if not, the likely extent and intensity of the adverse effects and her suffering.
- It was observed that the Secretary of State urged the Court to remit the matter to the tribunal so that findings of fact could be made to ensure that an informed decision could be made as to whether this was an appropriate case in which to give permission to appeal to the Supreme Court; and, if it was, that the Supreme Court would have a firm factual basis upon which to apply the relevant principles as they concluded them to be. In support of that contention, the Secretary of State made an application for an order that the Court receive new evidence in the form of a schedule of antiretroviral drugs that could be used in liquid form or crushed in suspension in liquid.
The Court of Appeal’s conclusions:
The Court of Appeal concluded that it would be pointless in practical terms to consider the case as suitable for the Supreme Court if, applying the correct burden of proof and test, the Secretary of State could show that, if the Applicant were removed to Malawi now, there would be no breach of article 3.
It was considered that there were two related issues that would need to be determined, namely:
- the ingestible ARV drugs that would be available to the Applicant if she were removed to Malawi, and
- on the basis of the available ingestible ARV drugs, the likely impact of the Applicant’s removal to Malawi on her health
The Court considered that those issues should be determined in the context of the appeal, prior to consideration of whether the case might be suitable for the grant of permission to appeal to the Supreme Court.
In the light of their experience in such matters, the Court of Appeal concluded that the issues should be remitted to the Upper Tribunal for determination.
Pending test cases in the Court of Appeal on the divergence between N and Paposhvili:
The Court of Appeal decided to formally adjourn the application for permission to appeal to the court but noted that in terms of a return date, there were currently three other appeals in which the difference between the criteria in N and those in Paposhvili are in issue, that are listed for Tuesday 30 October 2018 with a time estimate of 2-3 days. It was proposed that the application for permission to appeal be provisionally listed with those appeals, on a rolled-up basis. In the circumstances, it was considered that it would be helpful if the Upper Tribunal were able to determine the question out to them in time for that hearing.
It is likely that currently, there is a significant number of cases being stayed in the Courts awaiting resolution of the pending test cases.
Whatever the Court of Appeal’s decision will be following the October 2018 hearings, ultimately what matters will be the outcome in these or other tests cases in the Supreme Court itself.
In the meantime therefore, whilst much judicial ink is being expended in the lower courts, it clearly is high time that the Supreme Court consider the divergence between N and Paposhvili, much sooner rather than later.